The Issue The central issue in this case is whether Respondent is guilty of the violation alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: At all times material to the allegations, Respondent was a licensed pilot in the State of Florida having been issued License No. 0000025. On January 15, 1986, Respondent boarded the ship Act 5 as her state pilot for approaching an intended berth at Port Everglades. The Act 5 was over 700 feet long, had a single handed screw, a single rudder and was equipped with bow thrusters. The ship drew 34 feet at her stern on the date in question. The ship had a bulbous bow which protruded outwardly under the forward waterline. A tugboat, the Captain Nelson, captained by John A. Cummings was beside the Act 5 to assist in the berthing maneuver. The approach to Port Everglades is negotiated through a narrow canal. Vessels seeking berth proceed through the canal, past a jetties area, and into a turning basin. Once inside the basin a turn is required in order to bring a ship parallel to the intended berth. On January 15, 1986, the Act 5 was to be berthed at a location on pier 3 identified as berth 17. In order to approach berth 17 a sweeping turn to port must be made. On that date the Captain Nelson was positioned off the starboard bow during the Act 5's swing to port. Once this swing had been initiated, the Respondent ordered the tug to proceed to the port stern quarter. It was intended that the tug would assist to breast the ship beside the docking area. After the tug had begun its trip from starboard bow to stern, Respondent realized that the ship's swing would not be sufficient to bring her parallel to the dock. Accordingly, the Respondent ordered the tug to hook up and to pull at full throttle to slow the ship and bring her parallel. Additionally, since it was apparent the ship might collide with the dock, the despondent ordered the Act 5 to reverse at full throttle. Despite the corrective efforts, the Act 5 did not swing sufficiently to port and her bulbous bow struck the underplatting of the dock at berth 17. The platting cracked and the fill behind it washed out. When the fill washed out, the road built on top collapsed and the dock eroded. Approximately sixty feet of dock surface was destroyed. Unpredictable surface and subsurface currents in Port Everglades very dramatically affect docking procedures. The tides, which are repetitive, also affect docking maneuvers. Given the fluctuating tides and currents within the Port Everglades turning basin, it is not uncommon for a ship's handling to be predictable. Given the tide and current conditions known to Respondent on the date at issue, the collision was unpredictable and unforeseeable by a reasonably prudent pilot. Given the times and speeds noted in the Act 5's "bell book," the Respondent approached the intended berth under prevailing standards used by other pilots at Port Everglades.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Board of Pilot Commissioners enter a Final Order dismissing the Administrative Complaint against Respondent. DONE and RECOMMENDED this 26th day of May, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1988. APPENDIX Rulings on Petitioner's, DPR/Board of Pilot Commissioners, proposed findings of fact: Paragraphs 1, 2, and 3 are accepted. With regard to paragraph 4, the times and speeds noted in the Act 5's bell book are estimates which are within a reasonable range for approaching berth at Port Everglades. Distances are in unsubstantiated estimates and should not suggest Respondent used excessive speed. Three witnesses testified the ship approached at a reasonable rate. Such direct evidence controls over speculative estimates. Accordingly, paragraph 4 is rejected. Paragraphs 5 and 6 are accepted. Paragraphs 7 and 8 are accepted. With regard to paragraph 9, the cause of the collision is unknown. The ship did not swing to port sufficiently to become parallel to the dock. This lack of swing, coupled with the forward movement of the ship, resulted in the collision. As to why the ship did not continue its swing is speculative. Surface tides and currents as well as subsurface currents interfere with docking maneuvers and may have inhibited the swing. With regard to paragraph 10, the tides and currents noted were only surface ones. The subsurface currents which run deeper and which might effect a ship the size and draw of the Act 5 were not measured or charted. With that clarification, paragraph 10 is accepted. With regard to paragraph 11, it logically follows that Respondent's unforeseeable encounter would then serve as a warning to pilots involved in future docking procedures. That such pilots have benefitted from Respondent's incident does not suggest Respondent should have prejudged the problems. Accordingly, paragraph 11 is rejected as immaterial, irrelevant, and unnecessary. Rulings on Respondent's proposed finding of fact: Paragraphs 1-51 are accepted. Paragraph 52 is rejected as argumentative. Paragraph 53 is rejected a unnecessary, irrelevant or immaterial. Paragraphs 54-58 are rejected as unnecessary, irrelevant, immaterial, or argumentative. Paragraphs 59-62 are accepted. With regard to paragraphs 63 and 64, the Act 5 did collide with the underplatting at berth 17. The impact was felt by the tug Captain. Whether the dock was poorly maintained (and should have withstood the impact) or whether the fenders should have absorbed the shock is speculative but the touching was established. However, such touching was not caused by excessive speed or conduct falling below acceptable standards of safe pilotage. With that clarification, the paragraphs 63 and 64 are accepted. Paragraph 65 is accepted. COPIES FURNISHED: H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Margaret Mathews, Esquire One Tampa City Center Suite 2600 201 N. Franklin Street Tampa, Florida 33602 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Pat Guilford, Executive Director Department of Professional Regulation Board of Pilot Commissioners 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact CENTRAL FLORIDA's complaint for Unfair Termination in the form of a letter dated July 9, 1986, was filed in triplicate with the Department of Highway Safety and Motor vehicles on July 10, 1986, and alleged as follows: CENTRAL FLORIDA MACK TRUCKS, INC. has two agreements with MACK TRUCK, INC. The first agreement is a Mack Distributor Agreement dated July 1, 1967. The second agreement is a Mack Mid-Liner distributor Agreement dated September 20, 1979. MACK TRUCKS' letter of April 10, 1986, indicates they are "terminating" my agreements. As alleged by Petitioner CENTRAL FLORIDA, Respondent has terminated two Distributor Agreements, the MACK Agreement dated July 1, 1967, and the Mid-Liner Agreement dated September 20, 1979. To the extent the letter/complaint addresses the Mack Distributor Agreement dated July 1, 1967, it should be dismissed upon authority of Yamaha Parts Distributors, Inc. v. Ehrman, 316 So.2d 557 (Fla. 1975). In Yamaha, the Florida Supreme Court was faced with the unfair termination statute here at issue, Section 320.641 Florida Statutes, and the issue of its applicability to dealer agreements entered into between manufacturers and dealers prior to the effective date of the statute, January 1, 1971. On the basis of Article I, Section 10, of the U.S. Constitution and Article I, Section 10, of the Florida Constitution, regarding impairment of contracts, the Supreme Court held We hold that Section 320.641, Florida Statutes, applies prospectively to motor vehicles franchise contracts signed after its effective date. Yamaha Parts Distributors, Inc. v. Ehrman, 316 So.2d at 560. Yamaha is unambiguous. Therefore, as to the Mack Distributor Agreement, Section 320.641 does not apply. The Department of Highway Safety and Motor Vehicles, and through it the Division of Administrative Hearings and the undersigned hearing officer, have no jurisdiction to adjudicate the Complaint for Unfair Termination as it addresses the July 1, 1967 Mack Distributor Agreement. This determination was made in an Order entered in DOAH Case No. 86- 2622 on August 28, 1986. Since August 28, 1986, Petitioner has provided a more definite statement as to the Mack Mid-Liner Distributor Agreement which has been determined by the under signed Hearing Officer to be in compliance with her previous order. On October 3, 1986 Respondent moved for severance of the two distributor agreements, which severance was granted by an Corrected Order entered October 27, 1986. That order re-numbered the cause as pertains to the July 1, 1967 Mack Distributor Agreement as DOAH Case No. 86-4136 and retained DOAH Case No. 86-2622 for the cause as it pertains to the Mack Mid-Liner Distributor Agreement. Within its motion, Respondent represented that a recommended order (presumably leading to a final order) be entered at this time. Respondent has shown good cause for granting the relief prayed for. Without such relief, the Mack Distributor agreement hangs in limbo until such time as a recommended order is entered incorporating the August 28, 1986 ruling on the Mack Distributor Agreement and resolving all disputed issues of material fact concerning the Mack Mid-Liner Distributor Agreement is entered (presumably at least 30 days after conclusion of the final formal evidentiary hearing now scheduled to conclude January 6, 1987). Continuation of this situation pending the formal evidentiary hearing on the Mack Mid-Liner Distributor Agreement, typing of transcripts, submission of proposed findings of fact and conclusions of law, entry of a recommended order, filing of exceptions, and entry of the agency's final order prejudices Respondent Mack in that Mack is unable to appoint a new distributor in Central Florida.
Recommendation That the Secretary of the Department of Highway Safety and Motor Vehicles enter a final order dismissing this cause only as the July 1, 1967 Mack Distributor Agreement. DONE and ORDERED this 28th day of October, 1986, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1986. COPIES FURNISHED: Donald E. Cabaniss, Esquire 11 East Pine Street Post Office Box 1873 Orlando, Florida 32302 Dean Bunch, Esquire 305 South Gadsden Street Post Office Drawer 1170 Tallahassee, Florida 32302 C. Jeffrey Arnold, Esquire 857 North Orange Avenue Post Office Box 2967 Orlando, Florida 32802
The Issue Whether Respondents committed the offenses set forth in the Administrative Complaint and, if they did, the penalties, if any, which should be imposed.
Findings Of Fact On May 15, 1989, Petitioner filed an Order to Cease and Desist, Administrative Charges and Complaint with Notice of Rights against several parties including the following Respondents to the instant proceeding: Habersheir Securities, Inc. (Habersheir); Raymond Hayden (Hayden); Sharieff Mustakeem (Mustakeem); and Frank J. Hurt, III (Hurt). By Order Imposing Sanctions entered November 30, 1989, a default pursuant to Rule 1.380(b)(2)(C), Florida Rules of Civil Procedure, was entered against Habersheir, Hayden, and Mustakeem. No appearance was made by Habersheir, Hayden, or Mustakeem at the formal hearing, although Notice of Hearing was served upon them. Habersheir is a corporation whose main office in Atlanta, Georgia, has been registered with Petitioner as a broker/dealer since June 22, 1987. The Florida branch office of Haersheir was located at 100 West Cypress Creek Road, Suite 810, Fort Lauderdale, Florida 33309. The branch office was registered with Petitioner on September 29, 1988. At all times pertinent hereto, Mustakeem was the president of Habersheir and the majority owner of its stock, while Hayden was a vice- president of Habersheir. At the time of the final hearing, neither Mustakeem nor Hayden was registered with Petitioner. At all times pertinent hereto, Hurt was qualified for registration with Petitioner as a principal. Hurt's registration with Petitioner had not, prior to the filing of this matter, been disciplined. The application submitted by Habersheir to Petitioner on September 7, 1988, listed Hurt as the "Designated Manager in Charge Registered as Principal in Florida". Form BD is a form required by Petitioner in the application process. On Schedule E of the Form BD filed by Habersheir on November 14, 1988, Hurt is listed as the "Supervisor" of the Florida Branch. Hurt's name and his registration with Petitioner as a principal were used in connection with the registration of the Florida Habersheir branch to gain a favorable review of the application by Petitioner. Such use was without compensation to Hurt, but was with his knowledge and permission. Hurt was a salesman who had been employed by Habersheir for a short period of time when the application for the Florida branch office was filed. He was not an officer of Habersheir and had no managerial authority. At no time did Hurt intend to serve the Florida branch office of Habersheir in any capacity and at no time did he have any authority to supervise or otherwise manage that office. Representatives of Habersheir transacted business in Florida between September 7, 1988 and September 28, 1988, prior to Habersheir's branch office being registered in Florida with Petitioner on September 29, 1988. Associated persons working for Habersheir sold securities in or from the branch office in Fort Lauderdale, Florida prior to the associated persons being registered with the Petitioner. Habersheir's branch office in Fort Lauderdale, Florida, failed to maintain records and make available for Petitioner's inspection its cash receipt and disbursement blotter, securities received and delivery blotter, order tickets, and customer confirmations on all transactions as required by Section 517.121, Florida Statutes, and by Rule 3E-600.014(4), Florida Administrative Code. Habersheir also failed to maintain copies of its associated persons files as required by Rule 3E- 600.0014 (5)(a), Florida Administrative Code. At all times pertinent to this proceeding, Habersheir was a member of the National Association of Securities Dealers (NASD). Between November 7, 1988, and November 30, 1988, Habersheir's authority to transact business was suspended by NASD. Habersheir failed to notify its Fort Lauderdale, Florida, branch office of its suspension by NASD. Consequently, business was transacted by that branch office while Haersheir's authority to transact business was suspended by NASD.
Recommendation Based on the foregoing findings of facts and conclusions of law, it is RECOMMENDED that the State of Florida, Department of Banking and Finance, Division of Securities, enter a final order which: Revokes all registrations presently held by Habersheir Securities, Inc., and which assesses an administrative fine against Habersheir Securities, Inc. in the amount of $10,000.00 for its violations of Sections 517.12(5), and 517.121(1), Florida Statutes; and Which dismisses the administrative complaint against Sharieff Mustakeem, Raymond Hayden, and Frank J. Hurt, III. DONE AND ENTERED this 27th day of February, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE 89-3886 The following rulings are made on the findings of fact submitted by Petitioner: The proposed findings of fact In paragraphs 1-10 are adopted in material part by the Recommended Order. The proposed findings of fact In paragraph 11 are adopted in part by paragraph 1 of the Recommended Order, and are rejected in part as being unnecessary to the findings made. COPIES FURNISHED: Randall L. Rubin, Esquire Assistant General Counsel Office of Comptroller 401 N.W. 2nd Avenue Suite N-708 Miami, Florida 33128 Oliver Lee, Esquire Troutman, Sanders, Lockerman & Ashmore Candler Building, Suite 1400 127 Peachtree Street, N.E. Atlanta, Georgia 30303-1810 Frank J. Hurt, III 6666 Powers Ferry Road Suite 202 Atlanta, Georgia 30339 Preston Spears 91 Farmington Drive Woodstock, Georgia 30188 Rahim Davoudpour 1972 Benthill Drive Marietta, Georgia 33062 Honorable Gerald Lewis Comptroller, State of Florida Department of Banking and Finance The Capitol Tallahassee, Florida 32399-0350 William G. Reeves General Counsel Department of Banking and Finance The Capitol Plaza Level, Rm. 1302 Tallahassee, Florida 32399-0350 =================================================================
Findings Of Fact At all times material hereto Respondent has been a licensed pilot in the State of Florida, with license number 000050, and has operated as a pilot on Tampa Bay. Respondent received his state license in 1971, and also holds a federal license to serve as: Master of freight and towing vessels of not more than 1000 gross tons upon oceans; master of uninspected motor vessels of not more than 300 gross tons upon oceans; . . . first class pilot of steam and motor vessels of any gross tons upon Tampa and Hillsborough Bays to Tampa and Port Tampa, Florida, including Alafia River. . . . Count I On January 9, 1984, Respondent served as pilot aboard the foreign registered vessel Pennsylvania Rainbow as it sailed outbound from the International Minerals and Chemical Dock. The Pennsylvania Rainbow has a gross tonnage of 13,962, is 527.3 feet long and 81.4 feet wide. During the course of his pilotage duties, Respondent made a radio transmission substantially as follows: "Security, Security--Trico 1 outbound with Trico 3 and 4." Respondent is Trico 1, and Trico 3 and 4 are other members of Tampa Tri-County Pilots Association who do not have state pilot or deputy pilot licenses and who Respondent has sought to designate as "apprentice pilots." After the initial security call by Respondent, both Trico 3 and 4 also gave security calls aboard the Pennsylvania Rainbow. These security calls were overheard by licensed pilots on Tampa Bay who were approximately 15 miles away at the time and were concerned that persons without state licenses were being allowed to pilot the Pennsylvania Rainbow since the custom on Tampa Bay is that the person handling the vessel is usually the one who makes radio transmissions. At no time did the licensed pilots who testified actually see Trico 3 or 4 piloting the vessel. The foreign registered vessel Golden Laurel sailed inbound on January 22, 1984 to the loading berth at I.S. Joseph Company in Port Tampa with Respondent as pilot and Captain Tu Ting Kuo as master. The Golden Laurel has a gross tonnage of 29,729, and is 738.1 feet long and 105.6 feet wide. Respondent was accompanied by at least one unlicensed person whom he had sought to designate as an "apprentice." The unlicensed person was allowed to give commands which Respondent would overrule if such commands were not correct. Respondent remained on the bridge at all times in the immediate vicinity of the quarter- master and did correct the orders given by the unlicensed person on several occasions. The foreign registered vessel Trade Unity was inbound to the loading berth at I.S. Joseph Company on February 20, 1984 with Respondent as pilot, accompanied by an unlicensed person. The Trade Unity has a gross tonnage of 35,897 and is 770.14 feet long and 105.3 feet wide. With the permission of the master, Respondent allowed the unlicensed person to handle the Trade Unity in order to gain experience and practice. The unlicensed person gave commands which Respondent would overrule if necessary. On four occasions in June and July, 1984, Respondent served as pilot aboard the foreign registered vessel Marcona Conveyor as it arrived at and departed from Port Tampa. The Marcona Conveyor has a gross tonnage of 32,607, is 831.2 feet long and 106.2 feet wide. According to the master of the vessel, Capt. Charles D. Paden, Respondent permitted unlicensed persons to give commands for routine maneuvers of the vessel. Respondent would stand by on the bridge and intercede if necessary. Respondent permitted unlicensed persons to practice "piloting" by giving commands for the handling of the Golden Laurel, Trade Unity and Marcona Conveyor, but he contends that he remained on the bridge at all times, "acknowledged" or approved all such commands and overruled incorrect commands when necessary. Respondent also allowed unlicensed persons to practice radio transmissions and give security calls aboard the Pennsylvania Rainbow. His practice was to obtain the permission of the ship's master before allowing unlicensed persons to practice, and to introduce the unlicensed persons, whom he referred to as "apprentices," to the master. Respondent told the masters that he was the pilot of the vessel and would remain in control, while his "apprentices" practiced, by acknowledging their commands and interceding to change their commands whenever necessary. There is no approved apprenticeship program for pilots in Florida and Respondent's "apprentices" held no form of state authorization to practice or perform piloting. Respondent's practice of allowing unlicensed persons to gain hands-on ship handling experience by making radio transmissions and giving commands added an additional person to the normal chain-of-command on these foreign vessels, thereby increasing the risk of operation by increasing the potential for problems in communication. This is particularly significant with the non- English speaking crews on these foreign ships. Count II On February 28, 1984 Respondent piloted the foreign registered vessel Atropos Island in a shift from Gardinier Wharf in the Alafia River to Gadsden Anchorage. The Atropos Island has a gross tonnage of 10,019 and is 479.14 feet long and 75.08 feet wide. At the time it left the Gardinier dock, the ship was fully ballasted but had a forward draft of only 4 to 5 feet, a midship's draft of 8 to 9 feet, and an aft draft of 13 feet 9 inches. The propeller was half out of the water, with the upper half of the hub showing. After taking on cargo the loaded draft of the ship on leaving Tampa Bay was 31 feet. The weather on the morning of February 28, 1984 was overcast with winds out of the northwest at 20 to 30 miles per hour, with gusts to 40 miles per hour. Upon his arrival at the Atropos Island, Respondent monitored the weather broadcast, classified the vessel and waited for the ship to take on maximum ballast. He ordered three tugs to assist the Atropos Island in turning around in the Gardinier turning basin. It took twenty- five minutes for the vessel to complete its turn and begin to transit the Alafia River Channel. After completing the turn the tugs were ordered to release some of their lines. The Atropos Island did not go aground in the turning basin, although the vessel was blown toward the south bank of the basin by the winds to the extent that the tug Hillsborough, with a draft of 12 to 13 feet, could not get between the Atropos Island and the bank to push the vessel away from the bank. The tugs then put additional lines up to the vessel and pulled her into the middle of the turning basin. In transiting the Alafia River Channel, Respondent used a "crabbing" maneuver and this transit took approximately 1 1/2 hours, rather than the normal time of 20 minutes, due to this maneuver, the weather conditions, and Respondent's desire to await the assistance of larger tugs which he had ordered. "Crabbing" was described as a common piloting maneuver, particularly with vessels in light condition in a narrow channel such as the Alafia River Channel which is only 200 feet wide and approximately 2.8 miles long. When crabbing a vessel proceeding westerly through a channel with the wind out of the north- northwest, one tug would be on the starboard bow, the weather side of the vessel. As the vessel's stern begins to drag down, causing the vessel to go broadside, the pilot would put the rudder left, decrease the vessel speed and back the tug. The tug then acts like a spring line to pull the vessel up into a position almost parallel to the channel, at which point the pilot would slow the vessel and order the tug to stop backing. The maneuver would be repeated each time the wind caused the vessel to go off course in the channel. The evidence presented does not support the charge that the Atropos Island was grounded several times while proceeding down the Alafia River Channel. After considering all of the evidence presented, it appears that this crabbing maneuver used by Respondent was misinterpreted by the tug captains and by those who overheard radio transmissions by Respondent, which may have been "excited" due to the bad weather and difficult conditions in the channel during this transit. Significantly, the shipping agent for the Atropos Island testified that he discussed this transit with the captain of the Atropos Island the next day, and the captain stated the vessel did not run aground at any time while Respondent was piloting the vessel. The captain must account to the vessel's owner for all damage to the vessel the next time it is in dry dock and the owner will hold the captain liable for all unreported damage. Thus, it is not likely the captain of a vessel would not report a grounding if he thought one had occurred in order to protect himself from such liability. After completing the transit of the channel, the Atropos Island arrived at the location known as "Hillsborough Cut-C" where Respondent anchored the vessel and awaited larger tugs. The larger tugs, Yvonne St. Phillip and Gloria, arrived to assist the Atropos Island in turning at Cut-C, along with the smaller tugs Hillsborough and Pasco. The wind was still out of the north- northwest and the Atropos Island was heading west into the wind, having dropped its port anchor. Respondent had ordered the Hillsborough to take a position on the port bow of the Atropos Island and had positioned the Pasco on the port stern while they awaited the larger tugs. When the larger tug Yvonne St. Phillip arrived, Respondent ordered it to relieve the Pasco and the second larger tug, Gloria, was positioned on the port bow next to the Hillsborough. The Yvonne St. Phillip was pushing on the stern and the Gloria did not immediately put a line up at the bow. With the larger tug pushing in this manner at the stern, the bow of the Atropos Island began to come around toward the Hillsborough. The captain of the Hillsborough lost track of the location of the Atropos Island's anchor chain and became concerned that the anchor chain might be underneath his tug. The Hillsborough still had a line up to the Atropos Island at the time. There is conflicting testimony whether the Hillsborough's line snapped due to its being stretched tighter and tighter during this maneuver, whether it was severed by the bow of the Atropos Island, or whether Respondent ordered the line cut on purpose in order to release the Hillsborough so it could get out of the way. There is also conflicting testimony whether the Hillsborough was thereafter pushed aground by the Atropos Island or by the Gloria's wheel-wash. The captain of the Hillsborough believes that the Atropos Island pushed him aground. It was clearly established that the Hillsborough went aground at Cut-C and began to list at a 45 degree angle causing its captain great concern for the safety of his crew, and it is also established that its line to the Atropos Island parted. This occurred while the Hillsborough was assisting the Atropos Island at Cut-C. The Pasco later pushed the Hillsborough off ground. Respondent did not file a marine casualty report for any of the events occurring on the morning of February 28, 1984. Although there were winds of up to 40 miles per hour on the morning of February 28, 1984, there was other shipping traffic in the area. The conditions were not so severe as to preclude other vessels from moving, and Respondent checked the weather conditions and fully ballasting the vessel before leaving the dock. The weather did become more severe than forecast, making the maneuvers more difficult, but Respondent reacted to the worsening conditions by slowing his transit of the channel, ordering larger tugs and anchoring for a time at Cut-C.
Recommendation Based upon the foregoing it is recommended that Petitioner enter a Final Order imposing a one month suspension and one thousand dollar fine against Respondent. DONE and ENTERED this 13th day of May, 1985 at Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 13th day of May, 1985. COPIES FURNISHED: David G. Hanlon, Esquire David C. Banker, Esquire Post Office Box 3324 Tampa, Florida 33601 J. Micheal Shea, Esquire Post Office Box 2742 Tampa, Florida 33601 W.B. Ewers, Esquire Post Office Drawer 9008 Coral Springs, Florida 33075 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding respondent was licensed by the petitioner as a pilot. He began sailing as a seaman in 1945, received a pilot's license in Texas in 1954, was a captain of tugs from 1954 to 1969 and has been a member of the Tampa Bay Pilots Association from 1969 to the present time. Respondent has made close to sixty (60) trips per month in and out of Tampa Bay since 1969. On August 6, 1981, at approximately 1500 hours, Captain Baggett was aboard the M/V IFNI, a medium-sized oceangoing vessel, and was proceeding outbound in Tampa Bay. The tug DIXIE PROGRESS and Barge B-103 were proceeding inbound. The DIXIE PROGRESS, which is 115 feet long and 35 feet wide, was pushing Barge B-103, which is 430 feet long and 80 feet wide. The Barge was carrying 147,000 barrels of gasoline at the time. As the IFNI was in "G" Cut, Captain Baggett noticed the tug and barge proceeding inbound in "D" Cut, approximately three to five miles from him. He radioed the DIXIE PROGRESS in order to make arrangements for the meeting and passage of the two vessels. Respondent inquired if there was a pilot aboard the tug. In arranging meeting situations, it is customary for one pilot to communicate directly with the pilot on the other vessel. Donald Hyde, the first mate aboard the DIXIE PROGRESS responded to Captain Baggett's call and informed him that there was no pilot aboard the tug. Respondent informed Hyde that he would meet them in Cut "E" on one whistle. Walter H. Williams, the Captain aboard the DIXIE PROGRESS, was standing near the radio when respondent called from the IFNI. At the time, Captain Williams felt that respondent would try to break up the tug and barge on passing because the tug did not have a pilot on board. For that reason, he relieved his mate and took control of the tug. The DIXIE PROGRESS was the last vessel in Tampa Bay to start using pilots, and did not start taking pilots until September of 1981. Respondent Baggett's son wads employed by Dixie Carriers, Inc., the owner of the DIXIE PROGRESS. At the time of the radio communication with Captain Baggett, the DIXIE PROGRESS was travelling at a speed of about 5.5 knots. Its speed was reduced to ensure that the meeting would occur in Cut "E". As the IFNI passed through "F" Cut, two dredged were working in the vicinity. Captain Baggett decreased the speed of the IFNI as he approached each dredge, and stopped the engine after passing each dredge. After passing the second dredge in "F" Cut and while making the turn into "E" Cut, Captain Baggett ordered the engines full ahead. Captain Williams and first mate Hyde noticed a puff of black smoke emit from the IFNI after it passed the last dredge in "F" Cut and turned into "E" Cut. At this point, as the IFNI began to gain speed, the two vessels were approximately eight-tenths to one mile apart. Some seven to eight minutes later, the IFNI and the tug and barge passed each other in "E" Cut at a distance of approximately 75 feet. The channel in "E" Cut is about 400 feet wide. After the IFNI passed the tug and barge, waves of approximately five or six feet in height caused the barge to dive under the water and, as it came back up, a push wire two inches in diameter broke. After passing the DIXIE PROGRESS, respondent looked astern and noticed the tug and barge at odd angles to each other. He radioed the tug and inquired as to what had happened. When informed by Captain Williams that a push wire had broken, respondent replied that he was sorry and that he had not realized that the IFNI had caused such a large wake. At no time during the incident in question did DIXIE PROGRESS Captain Williams feel that his vessel was in danger or that there was going to be a loss of property or life. He considered this to be a minor incident. It is not unusual for another vessel to pass the DIXIE PROGRESS and its barge at a speed of full ahead. The DIXIE PROGRESS and Barge B-103 frequently "push out" of the Mississippi River in six foot seas using the same "in the notch" configuration as was used during the incident in question. It is not unusual for the push wires which connect a tug and barge together to snap. The Captain and first mate aboard the DIXIE PROGRESS estimated that the IFNI was travelling at a speed of approximately 15 knots as it passed the tug and barge. Captain Baggett believed that he was travelling at a speed of about 7.5 knots as he passed the DIXIE PROGRESS. To travel a distance of approximately eight-tenths of a mile in seven or eight minutes would result in an average speed of about six to seven knots. It could take the vessel IFNI anywhere from six to twelve minutes to reach full speed from a stopped engine, depending upon the currents and other factors. The speed which a reasonable and prudent pilot should maintain when approaching and passing a tug and barge is dependent upon the circumstances, including the weather conditions and currents, the swell or wake the vessel is pulling, the size and configuration of the channel, the amount of water outside the channel and the configuration and weight of the vessels. While a passage within 200 feet with the IFNI travelling at a speed of 15 knots would not be something that a reasonable and prudent pilot would do, it cannot be determined without knowledge of the surrounding circumstances whether a passage at 8 knots would constitute incompetence, negligence or misconduct. By a "Final Order" signed by the Chairman of the Board of Pilot Commissioners and filed on July 28, 1981, it was ordered that a proposed Stipulation in Case No. 0007227 was approved, adopted and incorporated by reference and that Thomas A. Baggett "is reprimanded and is placed on probation for a period of one (1) year. . . ." The Stipulation reveals that that case was the subject of a proposed complaint in a case factually unrelated to the present case and that part of the consideration for the Stipulation was that the proposed administrative complaint in that case be held in abeyance. Among the terms of the Stipulation were that "The Respondent shall be placed on probation for a period of one year from the date of the final order of the Board accepting this sti- pulation. The order of Probation will be deemed to have been violated, subject to proving the allegations, if the Respondent is found by the Probable Cause Panel of the Board to have engaged in any conduct which constitutes negligence, incompetence or mis- conduct as presently embodied within section 310.101, Florida Statutes. In such case both a new proposed Administrative Complaint may be filed and the instant proposed Admini- strative Complaint may be instituted. In this respect, the Respondent specifically waives any procedural objections to insti- tuting the instant proposed Administrative Complaint." In October of 1981, by a vote of 2-2, the Board of Pilot Commissioners refused to modify the Final Order of July 28, 1981, so as to delete the word "probation" from its terms.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against the respondent on January 18, 1982, be DISMISSED. Respectfully submitted and entered this 5th day August, 1982, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1982. COPIES FURNISHED: C. Steven Yerrid Holland and Knight Post Office Box 1288 Tampa, Florida 33601 W. B. Ewers, Esquire Special Trial Counsel 2170 SE 17th Street Suite 204 Ft. Lauderdale, Florida 33316 Jane Raker, Executive Director Board of Pilot Commissioners 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue presented is whether Rule 61E13-2.012, Florida Administrative Code, is an invalid exercise of delegated legislative authority.
Findings Of Fact l. Petitioner South Florida Cargo Carriers Association, Inc., is a Florida not-for-profit corporation with its principal office in Miami, Florida. Petitioner's purpose is to promote, advance, and secure laws, rules and regulations concerning vessels utilizing the navigable waters of the State of Florida, in particular the Port of Miami and Port Everglades, in order that the waters, harbors, and ports of the State and the environment, life, and property of all persons be protected to the fullest extent possible consistent with sound financial principles. Petitioner consists of the following companies: members of the Florida-Caribbean Cruise Association; Maersk, Inc.; Seaboard Marine; Kirk; SeaLand; Zim; Cari Freight; Thompson Shipping, and Burmuth. Intervenor Florida State Pilots Association, Inc., is a Florida not-for-profit corporation. It is a voluntary organization whose membership is comprised of all individual pilot associations serving the various ports of the State of Florida, as well as approximately 100 pilots licensed by the State of Florida. Among other things, Intervenor advances and defends the interests of its membership on the state level. The Port Everglades Pilots' Association (hereinafter "PEPA") is an association composed of present and retired harbor pilots that is treated as a partnership for tax purposes and which performs the pilotage services at Port Everglades. PEPA and its affiliates Port Everglades Pilots, Inc., and PEP, Inc., are located in Fort Lauderdale. The purpose of PEPA is to provide pilotage services in Port Everglades in a safe and efficient manner and in compliance with the provisions of Chapter 310, Florida Statutes, the rules promulgated thereunder, and any other provisions of law governing the provision of pilotage services. As such, PEPA is entitled to charge pilotage rates as provided in Section 310.151, Florida Statutes, and, as further provided therein, to seek rate changes by filing a petition with the Department of Business and Professional Regulation, Pilotage Rate Review Board. A number of Petitioner's members are affected by the rates of pilotage set for Port Everglades, inasmuch as they are required by Chapter 310, Florida Statutes, to utilize and compensate the pilots whose rates are established by the Board, and they are utilizing and compensating pilots in accordance with the rates currently established for Port Everglades. In January 1997 PEPA submitted to the Board an application for an increase in the pilotage rates for Port Everglades. In February 1997 Petitioner submitted its own application for a decrease in the rates of pilotage for Port Everglades. On May 20, 1997, the Board held a public hearing on both applications. At the conclusion thereof, the Board preliminarily determined to grant PEPA's application for a rate increase in its entirety and to deny Petitioner's application for a rate decrease. The Board's preliminary determination was reduced to writing on July 3, 1997. On July 28, 1997, Petitioner filed with the Board a Petition for Formal Administrative Hearing challenging the Board's decision to grant PEPA's application and to deny Petitioner's application. The Board thereafter transmitted that Petition to the Division of Administrative Hearings. The Board's transmittal letter filed August 7, 1997, cautioned the Division not to carry out its full statutory functions because: it is the Board's position , as expressed in rule 61E13-2.012(3), F.A.C., that the resolution of any disputed issue of fact by an [Administrative Law Judge] cannot result in a recommendation from that ALJ as to what the rate should be. The ALJ's recommendation should only extend to resolving the disputed issues of material fact. Subsequently, and based upon the resolved issues of fact, the Pilotage Rate Review Board will set the appropriate rates. On August 18, 1997, Petitioner filed its Petition Seeking an Administrative Determination of the Invalidity of an Existing Rule, challenging Rule 61E13-2.012(3), Florida Administrative Code, pursuant to Section 120.56(3), Florida Statutes. Petitioner has standing to file and maintain this rule challenge proceeding. Intervenor has standing to intervene in this rule challenge proceeding. Rule 61E13-2.012(3), Florida Administrative Code, was adopted before October 1, 1996. It was included on a list submitted by the Pilotage Rate Review Board in accordance with Section 120.536(2), Florida Statutes. It was subsequently amended by the Board, effective October 14, 1997, so as to delete all portions of the Rule except for Subsection (3) which is now the entire Rule.
The Issue Whether the subject assessment of taxes, interest and penalties should be upheld.
Findings Of Fact By "Notice of Assessment and Jeopardy Findings" dated July 31, 1989, Respondent assessed Petitioner with taxes, interest, and penalties in the total amount, as of the date of the notice, of $161,724.75. This assessment was made pursuant to Section 212.0505, Florida Statutes, following an incident on February 4, 1988. The parties stipulated that this assessment was properly issued, that notice thereof was properly given to Gary Wayne Chitty, and that the mathematical calculations contained therein are accurate and correct. The following findings are made as to Petitioner, Gary Wayne Chitty, pursuant to the stipulation of the parties. His full name is Gary Wayne Chitty. His social security number is 261-17-0682. His date of birth is April 27, 1953. His present residence is 6840 S.W. 12th Street, Miami, Florida. He has never declared himself a citizen of any country other than the United States. On, or before, February 1988, he knew Rafael Silvio Pena. On February 4, 1988, he held a valid multi-engine pilot's license which was issued to him by the Federal Aviation Authority. On, or about February 4, 1988, he and Rafael Silvio Pena boarded and flew an aircraft designated N6726L. He and Mr. Pena planned to fly a multi-engine aircraft (N6726L) from a point outside of the United States and to enter the airspace of the United States near Cedar Key, Florida and travel within the airspace of Florida to Marathon, Florida. He filed, or caused to be filed, a flight plan for said trip with Mr. Pena in advance of the trip. He loaded or caused to be loaded marijuana on the aircraft (N6726L) prior to its departure. On, or about, February 4, 1988, he and Mr. Pena flew said airplane (N6726L) from a point in the vicinity of Cedar Key, Florida, to Marathon, Florida. During said flight, the aircraft made no other landings. During the entire flight on February 4, 1988, he and Mr. Pena were the sole occupants of said aircraft. During said flight he was the pilot of N6726L. He flew this aircraft on February 4, 1988 with the full knowledge and/or consent of the airplane's owners and/or official lessees. When he took off from the aircraft's departure point on February 4, 1988, it was loaded with a large quantity of marijuana. When he took control of said aircraft and took off, he knew it was loaded with said marijuana. He discussed his plans to transport the marijuana with Mr. Pena. When he took control of the aircraft, the aircraft (N6726L) contained nineteen (19) bales of marijuana which weighted six hundred ninety-nine (699) pounds. He and Mr. Pena flew this airplane along a course towards Marathon, Florida in a manner which took it over or near Lake Okeechobee, Florida. At a point along his route, he and/or Mr. Pena caused the bales of marijuana to be jettisoned from the aircraft. The marijuana was jettisoned as part of a conscious plan or design. The marijuana that was jettisoned from N6726L during its flight on February 4, 1988, weighed a total of 699 pounds. He did not know that during this flight of February 4, 1988, his aircraft was being observed by law enforcement officers. As part of his original plan, he piloted this aircraft to Marathon, Florida, where he landed. AA. During this entire flight the aircraft performed adequately and experienced no mech- anical difficulties. BB. Upon his landing at Marathon, he and Mr. Pena were arrested. CC. He knew the estimated retail value of the marijuana on board his aircraft (N6726L) was $600 per pound.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which upholds the subject Jeopardy Findings and Assessment. RECOMMENDED in Tallahassee, Leon County, Florida, this 28th day of January, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1991. COPIES FURNISHED: James McAuley, Esquire Mark Aliff, Esquire Assistant Attorneys General Department of Revenue Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Mel Black, Esquire 2937 S.W. 27th Avenue Miami, Florida 33133 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahasseee, Florida 32399-0100 William D. Moore General Counsel 203 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact Petitioner is a Swiss national, who resides in Jamaica. His business in Jamaica involves water sports and vacation tours, primarily for European tourists. Petitioner attended a boat show in Fort Lauderdale, Florida, in order to locate a suitable boat for entertainment and tour purposes for use by his business in Jamaica. There, he saw The Lady, a vessel being brokered by Anchorline Yacht and Ship Brokerage, Inc., of St. Petersburg, Florida. On February 28, 1980, Petitioner purchased The Lady from Anchorline for $120,000. Prior to that date, a survey was conducted by Wilkinson Company, marine surveyors, and repairs indicated by that survey were completed at South Pasadena Marina, Inc. At the time that Petitioner purchased The Lady from Anchorline, he advised the broker that he was taking the vessel out of the country. Accordingly, the broker required Petitioner to sign an affidavit that Petitioner had read the provisions of Section 212.05, Florida Statutes, and no tax was collected on the sale and purchase of The Lady. As The Lady was journeying from St. Petersburg across the State of Florida to West Palm Beach in order to reach Jamaica, she started taking on water. She was taken to Lantana Boatyard, where another marine survey was conducted. That survey concluded that The Lady was not seaworthy and, therefore, could not be taken to Jamaica at that time. As one of the required repairs, her engines needed to be overhauled by Cummins in Miami. Accordingly, after the repairs to be made at the Lantana Boatyard were completed, The Lady was taken to the Keystone Point Marina in North Miami, Florida, so that the work on her Cummins engines could be undertaken. During this time, Petitioner attempted to register The Lady in Jamaica; however, the Jamaican Government refused to license or register the vessel since she was not in Jamaica but was still physically located within the State of Florida. As a result of discussion between Petitioner and a Mr. Mathews at Anchorline, on September 18, 1980, the Petitioner made application for a Florida boat Certificate of Title at a tag agency. He reported the purchase price as ten dollars and, accordingly, paid forty cents tax on the transaction. Cummins started the repair work necessary on The Lady's engines while she had been docked at the Keystone Point Marina. On occasion, Petitioner has stayed overnight on The Lady for security purposes. He has had a telephone attached to the vessel for his personal use while on board. On January 7, 1981, Respondent Department of Revenue issued a Warrant for Collection of Delinquent Sales and Use Tax against the Petitioner in the total amount of $9,967.37, representing the follows: Tax $4,799.60 Penalty 4,799.60 Interest 350.17 Filing Fee 18.00 $9,967.37 On January 19, 1981, Petitioner made payment to Respondent Department of Revenue in the amount of $5,167.77, which payment was made under protest and which payment represents the amount of tax, interest, and filing fees, but does not include the amount of penalty. Pursuant to its warrant, the Department of Revenue has chained The Lady to the dock at the Keystone Point Marina. Accordingly, the work being performed by Cummins on her engines has not been completed, and no sea trial can be conducted. As stipulated by the parties, since the Petitioner purchased The Lady, she has been under repair and has never left Florida waters.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is therefore, RECOMMENDED THAT: A final order be entered denying Petitioner's claim for a refund, finding the Petitioner liable for a sales tax equal to four percent of the purchase price, together with interest and filing fees, but finding the penalty assessed against Petitioner to be erroneous and therefore invalid. DONE AND ENTERED this 8th day of October 1981 in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October 1981. COPIES FURNISHED: Michael Lechtman, Esquire 801 N.E. 167th Street, Suite 301 North Miami Beach, Florida 33162 John Browdy, III, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Mr. Randy Miller Executive Director Department of Revenue 102 Carlton Building Tallahassee, Florida 32301 The Honorable Gerald A. Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32301
